A countywide look at medical marijuana rules
July 25, 2011
Christopher Cadelago, San Diego Union-Tribune
The San Diego City Council’s decision to repeal new restrictions on medical marijuana collectives comes as cities across the county continue to clamp down on the storefront operators.
Council members on Monday were forced to either repeal their own rules or put the question to voters after a coalition of medical marijuana advocates submitted enough signatures to qualify a referendum.
The move puts the city’s collectives in legal limbo. Technically, they are illegal under city codes, but it’s uncertain whether the city will enforce those codes.
The ordinance the petition drive sought to overturn would have required all of the city’s collectives to shut down and apply for permits. Dispensaries would be limited to some commercial and industrial zones, at least 600 feet from one another, as well as from schools, playgrounds, libraries, child-care and youth facilities, parks and churches.
The latest attempt to regulate the proliferation of collectives has taken on added significance for medical marijuana patients and providers given the growing number of local municipalities turning to outright bans. Here’s a snapshot of the current situation countywide.
San Diego County
Last June, San Diego County joined a growing number of governments seeking to curb the sale of medical marijuana within their boundaries. The rules limit collectives to industrial areas and prohibit them from operating within 1,000 feet of places such as parks, churches, homes, schools, libraries and other medical marijuana facilities. Supervisors later approved an $11,000 annual fee for collective operators.
The decision represented a stark break from the past. In 1996, three county supervisors were so strongly opposed to Proposition 215, the voter-approved initiative that allows people to grow and smoke marijuana on their physician’s recommendation, that they voted to sue the state in an attempt to overturn the laws rather than implement them.
The U.S. Supreme Court three years later declined to hear an appeal from San Diego and San Bernardino counties, effectively ending the suit.
This month, Mother Earth’s Alternative Healing Cooperative opened as the first legally permitted medical marijuana collective in the county.
Carlsbad does not have any rules regulating medical marijuana dispensaries. However, its zoning code does specify what uses are allowed within the jurisdiction. A medical marijuana storefront distributor is not among them, Assistant City Attorney Paul G. Edmonson said. Additionally, the city’s business license ordinance requires compliance with federal law.
The Chula Vista City Council voted to ban medical marijuana dispensaries, collectives and cooperatives on July 12. Said Mayor Cheryl Cox about marijuana: “Nothing good ever comes from it.” But at least two council members indicated they would consider allowing nonprofit operators — collectives or collaboratives — in the future if they met strict regulations. The ban was temporary before it was made permanent.
The city’s municipal code does not list a medical marijuana dispensary as an approved use, City Clerk Linda Hascup said. There also is no current action being considered or pending to add that type of use in the jurisdiction, she said.
Del Mar is one of several cities in the region to restrict medical marijuana dispensaries. Rather than a ban, the city looks to applicable zoning to determine a property’s allowable uses, City Attorney Leslie Devaney said. The city’s lone medical marijuana dispensary recently closed after orders from a superior court judge. Dispensary Manager Patrick Kennedy maintains it is his right to operate under state law.
Distributing medicinal marijuana is prohibited in commercial areas. Councilman Bill Wells expressed disappointment with the county’s decision to permit a 15,200-square-foot dispensary just outside the city limits near Gillespie Field. “It’s against federal law and California is thumbing its nose,” Wells said.
Medical marijuana dispensaries are not allowed since they are not listed as an allowable use within the city’s zoning code. “As such, we do not have any ordinance or policies that regulate medical marijuana dispensaries,” Planning and Building Director Patrick Murphy said.
The Escondido City Council voted to ban medical marijuana dispensaries in August 2009. Officials stressed that marijuana remains a illegal controlled substance under federal law. The rules also state that dispensaries don’t qualify as primary caregivers under the health and safety code. Courts have ruled that in order to become a primary caregiver a person must have consistently assumed responsibility for the housing, health or safety of a patient. Violators face misdemeanor charges and steep fines.
Imperial Beach banned medical marijuana dispensaries on June 15.
The prohibition, which applies throughout the 2-square-mile beach town, was prompted by concerns over possible crime spikes, the potential for abuse of medical identification cards and the impact regulation would have on the city’s $17 million general fund.
Councilman Brian Patrick Bilbray opposed the ban. “I think a judge’s going to turn around and say ‘You have to accommodate for at least one,’” Bilbray said. “I think the responsible thing to do is to allow for at least one.”
Medical marijuana dispensaries are not a permitted use in La Mesa. The city’s zoning ordinance states that “those uses and structures as provided in the various zone regulations herein shall be permitted, all others shall be prohibited,” City Clerk Mary Kennedy said.
In recent months, a handful of people have applied for a business license to operate as a collective, officials said. However, property owners remain subject to civil or criminal charges if they violate the zoning rules.
Lemon Grove effectively bans medical marijuana collectives because they not allowed under current zoning laws, City Manager Graham Mitchell said.
The City Council adopted a new land-use code that bans medical marijuana dispensaries on June 21. The former code only prohibited uses that were not specifically allowed, including medical marijuana storefronts. According to research conducted by the National City Police Department though the Drug Enforcement Agency, marijuana is a “dangerous, addictive drug that poses significant health threats to users.” Further justification offered by the city includes that marijuana remains on the list of Schedule I drugs.
Last year, the city effectively banned medical marijuana dispensaries through a change in its zoning ordinance. Under the new policy, uses that are not explicitly covered by the zoning ordinance, such as single-family dwellings occupied by multiple adults or marijuana dispensaries, are prohibited.
Dispensary directors could still seek an amendment to add the business to the city’s list of permissible land uses. If added, collectives would then have to apply for a permit. That would give the planning commission or city council the ability to impose regulations on the dispensaries’ operations.
Recently, a judge ordered two dispensaries to close because they were operating without business licenses.
Medical marijuana dispensaries, cooperatives and collectives were temporarily banned on July 6. The urgency ordinance was set to expire in 45 days. City Attorney Morgan Foley — citing the co-op that opened outside El Cajon — said the city moved swiftly to protect itself from having to consider a dispensary while new rules were pending. Indeed, at least one operator applied for a license before the moratoria took effect.
In 2006, San Marcos became the first city in county to ban medical marijuana dispensaries. Specifically, the city prohibits uses that are not permitted as a matter of right or through a conditional-use permit. Jacqueline Vinaccia, an attorney representing the city, said the ban was consistent with Proposition 215 because the measure does not restrict cities from regulating land use.
In September, the city initiated enforcement actions against its medical marijuana dispensaries and has secured temporary and preliminary injunctions against four of them. Settlements with three of the dispensaries say they can’t operate until the city changes its regulations. A forth case, San Marcos v. Wellness Tree, et al. is pending action.
A two-year city moratorium on medical marijuana dispensaries ended June 23, but zoning regulations preclude any collectives from operating legally. Last month, the issue came before the Santee City Council, which directed staff to keep tabs on any court decisions or changes in the law that could affect the local situation.
Medical marijuana dispensaries are not listed as a permitted use under the Solana Beach Municipal Code.
Medical marijuana dispensaries are not listed as a permitted use in the city of Vista, which prohibits any activity that is illegal under state or federal law. A city spokeswoman said the city is taking legal action against some operators. “This enforcement action is in the hands of the City Attorney’s Office and is not available to the public (or) media due to the legalities and the enforcement action process,” Andrea McCullough said.
California voters approved Proposition 215 in 1996. The Compassionate Use Act exempts patients and caregivers who possess or cultivate marijuana recommended by a physician from criminal laws.
In 2003, the state legislature enacted Senate Bill 420. The Medical Marijuana Program Act clarified the application of Proposition 215 and expanded immunity from prosecution to doctor-recommended patients and their caregivers who transport marijuana. It also required counties to establish an identification card program and recognized the right of collective and cooperative cultivation of medical marijuana.
This year, amendments to the law bar dispensaries from locating within 600 feet of schools. The rules also clarify that municipalities may impose further restrictions on locations through ordinances. Marijuana is treated like other controlled substance such as cocaine and heroin under federal law.
Source: San Diego County and various cities.
County of Los Angeles v. Hill, et al., (2011)
A state appeals court held that Los Angeles County’s ordinances restricting the location and operations of medical marijuana dispensaries were a valid exercise of local land-use authority.
For about four years, the county allowed medical marijuana dispensaries to operate under restrictions that kept them away from areas such as schools, playgrounds and churches. However, of the existing collectives, few applied for a permit. In November, the county moved ahead with an outright ban.
Qualified Patients Association, et v. City of Anaheim (2010)
A state appeals court sent the city’s three-year-old ban on dispensaries back to the lower court after rejecting the city’s position that federal law trumps state laws on the issue. But the appellate judges declined to rule on the legality of bans.
Joe Elford, chief counsel for Americans for Safe Access, said the silver lining to the decision was that the court reinstated the lawsuit. That should provide the plaintiffs the opportunity to prove that dispensary bans are illegal under state law, Elford said.
City of Claremont v. Kruse, et al., (2009)
A state appeals court ruled that the Compassionate Use Act does not pre-empt a municipality’s traditional zoning or business license decisions. Claremont had approved a temporary ban preventing issuance of a business license or other approvals of medical marijuana dispensaries as uses not allowed under its zoning ordinance.
City of Corona v. Naulls, et al., (2008)
A state appeals court upheld the issuance of a preliminary injunction to prevent a medical marijuana dispensary from operating. The court noted that the “evidence showed that Naulls, in applying for a business license, failed to indicate that he intended to operate a medical marijuana dispensary, instead describing the business as ‘miscellaneous retail.’”